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McKay v. City of Choteau3/4/1999
ORDER ON APPEAL
This is an appeal of a Department of Labor and Industry (Department) decision finding that the appellant (claimant) does not suffer from an occupational disease (OD). Claimant was represented by an attorney in the proceedings below. However, he is prosecuting this appeal pro sé. He alleges that the Department's hearing officer failed to properly consider and weigh the evidence presented at hearing.
May 22 nd Motion for New Hearing
On May 22, 1998, the claimant filed a motion requesting a new hearing. (MOTION
TO REQUEST FOR NEW HEARING .) In the motion the claimant states that a portion of the telephonic testimony of Dr. Bardana was not heard by him and his attorney. Claimant also argues that he should be examined by a toxicologist, who might then provide testimony in support of his claim.
On June 10, 1998, the Court denied the motion because it raised factual issues which should be resolved only after review of the transcript and, if necessary, the tape recordings of the hearings. (ORDER DENYING MOTION FOR NEW HEARING AND MOTION TO OVERTURN.) The Court ordered that the parties address the matter in their briefs on the merits of the appeal. (Id.)
The claimant has not addressed the matter further. Nevertheless, the Court has reviewed the hearing transcript and determined that the telephone testimony of Douglas Wilhelm, not Dr. Bardana, was interrupted. (Tr. at 100-101.) The record shows that the situation was discussed with claimant's attorney and that the tape recording of the testimony was replayed for the parties. Upon hearing the replay of the tape-recorded testimony given while disconnected, claimant's attorney was satisfied and indicated that she had no objection to the testimony. (Id. at 101.)
At oral argument held March 1, 1999, the Court asked the claimant about the interrupted testimony. He indicated that he recalled the interruption as occurring during Dr. Bardana's testimony, but he also recalled that he and his attorney were aware of the interruption and that the testimony which was given while they were disconnected was replayed for them. Thus it appears that any interruption did not prejudice claimant.
In any event, it is plain that the claimant and his attorney were aware of the telephonic cutoff. It was incumbent upon them to lodge an objection to the disrupted testimony when it occurred. An objection cannot be raised for the first time upon appeal. Estate of Hill, 281 Mont. 142, 151, 931 P.2d 1320, 1326 (1997).
In reviewing the prior Order on this motion, I note that I did not address claimant's request that a new hearing be granted so he can be examined by a toxicologist, whose testimony might then be provided. Section 2-4-703, MCA, governs the introduction of additional evidence:
2-4-703. Receipt of additional evidence. If, before the date set for hearing, application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. [Emphasis added.]
Claimant has not shown why the examination could not have been done prior to hearing.
The claimant's May 22, 1998 motion requesting a new hearing and the opportunity to pres
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